O'Brien v. Skinner | Cases | Westlaw

We reject out of hand any scheme which would commit respondents to a policy of transporting such detainees to public polling places; would assign them the responsibility of providing special voting facilities under such conditions, and in view of the attendant difficulties; or, would threaten like hazards embraced by such schema. The question raised, then, resolves itself into simply this: whether confinement to a penal institution constitutes a ‘physical disability’ under sections 117—a and 153—a of the Election Law, Consol.Laws c. 17, thus affording petitioners the occasion to vote by absentee ballot; if not, whether the recognized failure to make such provision deprives them of equal protection of law.

**136 Petitioners seek absentee registration and ballots under sections 117—a and 153—a of the Election Law, providing for absentee voting and registration where a voter is ‘unable to appear personally (for either purpose) because he is confined at home or in a hospital or institution, other than a mental institution because of illness or physical disability’ (Election Law, s 117—a, subd. 1; s 153—a, subd. 1). Under these provisions, however, a person seeking to qualify by reason of such a disability is further required to submit proof of this fact in the form of a medical certificate executed by an attending physician or the administrative head of a hospital or institution (Election Law, s 117—a, subd. 5; see, also, Election Law, s 153—a). What is required of an applicant, therefore, is that he be medically disabled by reason of some malady or other physical impairment. Under the circumstances, the fact of confinement to a penal institution would not entitle a voter or registrant to avail himself of the absentee provisions.

Nor does the failure to provide these absentee rights deprive the petitioners of their equal protection guarantees. These provisions *320 set forth no voter qualification nor restriction which, by its terms, ***893 would deny the franchise to any group otherwise qualified to vote (cf. Matter of Atkin v. Onondaga County Bd. of Elections, 30 N.Y.2d 401, 334 N.Y.S.2d 377, 285 N.E.2d 687; Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274; see, also, Kramer v. Union School Dist., 395 U.S. 621, 626—627, 89 S.Ct. 1886, 23 L.Ed.2d 583). Such conditions must, of course, be ‘necessary to promote a compelling state interest’ (Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 1000, Supra; Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92; Matter of Atkin v. Onondaga County Bd. of Elections, 30 N.Y.2d 401, 404—405, 334 N.Y.S.2d 377, 378—379, 285 N.E.2d 687, 688—689, Supra; Matter of Palla v. Suffolk County Bd. of Elections, 31 N.Y.2d 36, 49—50, 334 N.Y.S.2d 860, 868—870, 286 N.E.2d 247, 253—254).

The right to vote does not protect or insure against those circumstances which render voting impracticable. The fact of incarceration imposes many other disabilities, some private, others public, of which voting is only one. Under the circumstances, *321 and in view of the Legislature's failure to extend these absentee provisions to others similarly disadvantaged, it hardly seems plausible that petitioners' **137 right to vote has been arbitrarily denied them. It is enough that ***894 these handicaps, then, are functions of attendant impracticalities or contingencies, not legal design.